1. This appeal arises under the following circumstances. The plaintiffs and defendant occupy houses in the same vicinity. Between their houses lies a piece of waste land used by them as a passage. (In all probability it was left vacant for this purpose.) The finding of the lower appellate Court is that this piece of land is the joint property of the parties. The defendant has built a balcony from his house projecting over a considerable width of the passage. The plaintiff has instituted the present suit for the removal of this balcony. The first Court held that the passage was a public way and dismissed the plaintiff's suit on that ground. The lower appellate Court granted the plaintiff's claim in the main. In second appeal a learned Judge of this Court reversed the decree of the lower appellate Court and restored the decree of the Court of first instance. The present appeal is against the decree of the learned Judge of this Court. It seems to us that the view taken by the learned Judge is not correct. He seems to have thought that just as a private individual cannot maintain a suit in respect of a public highway without showing special damage, so also one of two joint owners of a piece of land which has been used as a passage cannot maintain a suit, unless he can show that the right of passage has been substantially interfered with.
2. The reason why a private individual cannot maintain a suit in respect of public property is because the property does not belong to the private individual. But one joint owner of private property has no right to do anything which will make the joint property more exclusively his. It cannot for a moment be disputed that if the land, instead of being used as a passage, had been left waste the defendant would not have been entitled to have built a balcony projecting over the land. In our opinion, the fact that the land was used as a passage can make no difference whatever. We allow the appeal, set aside the decree of the learned Judge of this Court and restore the decree of the lower appellate Court with costs of both hearings in this Court.
V.B/R.K
3. Appeal allowed.